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Allahabad High Court · body

2003 DIGILAW 1769 (ALL)

Kanchan Lal v. Board of Revenue, U. P.

2003-08-06

S.U.KHAN

body2003
JUDGMENT : S.U. KHAN, J. 1. Petitioner Nos. 1 and 2, father of Petitioner Nos. 3, 4 and 5 and Respondent Nos. 8 and 9 took some loan from the Bank of Baroda for purchasing Tractor. As the loan and the interest were not paid in time, hence proceedings for recovery of the same like arrears of land revenue were initiated. The agricultural land of the debtors was auctioned twice on 3.3.1984 and 13.2.1986. The necessity for the second auction arose as the first auction was set aside by the Commissioner on 1.10.1984 on objections filed under Rule 285-I of the Rules framed under U.P.Z.A. and L.R. Act (hereinafter referred to as the Z.A. Rules). The Commissioner set aside the same on the ground of illegality and irregularity. The order of the Commissioner setting aside the first sale dated 3.3.1984 is annexed as Annexure-II to the writ petition. It has been stated in the writ petition that after the first auction sale, the entire dues were paid to the Bank. Annexure-3 to the writ petition is photostat copy of a statement of account issued by the Bank of Baroda according to which no amount remained due and account was closed on 11.7.1984. Amounts of Rs. 71,000 and odd and Rs. 30,000 are shown to be deposited on 31.3.1984. Further amount of Rs. 4,000 appears to have been deposited on 2.4.1984 in the aforesaid statement of account. In the judgment of the Board of Revenue, it is mentioned that Bank issued the certificate on 24.11.1986 with regard to full payment (Annexure-3 to the writ petition contains date which is not legible). However, it has not been mentioned in the judgment of Board of Revenue as to what was the date of full payment according to the said certificate dated 24.11.1986. Earlier auction sale was made in favour of Respondent Nos. 5 to 7. In the second auction sale also, only these three persons participated and as per 'fard nilaam' copy of which has been annexed as Annexure-5 to the writ petition auction was finalised in favour of Radhey Shyam, Respondent No. 5 for Rs. 1,19,000 and purchaser was directed to make deposit in accordance with the rules. It appears that as required by the Rule no deposit was made on the date when auction was finalised. 1,19,000 and purchaser was directed to make deposit in accordance with the rules. It appears that as required by the Rule no deposit was made on the date when auction was finalised. It further appears that the auction purchaser/ Respondent No. 5 made a statement that the amount deposited by him in pursuance of the earlier auction dated 3.3.1984 might be adjusted in lieu of the amount which he was required under the Rules to deposit in pursuance of the second auction dated 13.2.1986. Petitioners filed objections before the Commissioner under Rule 285-I of Z.A. Rules against second auction sale dated 13.2.1986. The Commissioner by his order dated 1.9.1986 dismissed the objections; copy of the said order is Annexure-8 to the writ petition. The Commissioner held that: "The law does not bar this amount of adjustment." 2. In the said order it is also mentioned that Rs. 17,000 and odd were deposited by purchaser on 27.2.1986. Against the order of the Commissioner Petitioners filed a writ petition in this Court being Writ Petition No. 16542 of 1986 which was dismissed on 25.9.1986 as not pressed. Thereafter, Petitioners filed revision before the Board of Revenue on 27.1.1987 against order of the Commissioner dated 1.9.1986. By the impugned order dated 22.10.1993 Annexure-11 to the writ petition, Board of Revenue has dismissed the revision. 3. This writ petition is directed against the aforesaid orders of Commissioner and Board of Revenue respectively. The Board of Revenue dismissed the revision on the ground that Petitioners could not point out any illegality or irregularity in publishing or conducting the sale that on the date of sale amounts had not been paid to the Bank and that writ petition filed by the Petitioners had been dismissed by the High Court on 25.9.1986. 4. It may further be mentioned that on 15.10.1986, Petitioners filed a regular suit before the civil court being Original Suit No. 412 of 1986 for permanent injunction challenging the second auction sale dated 13.2.1986. The suit was dismissed on 8.8.1990 and appeal filed against the same being Civil Appeal No. 63 of 1990 is reported to be pending yet. 5. It may further be mentioned that on 15.10.1986, Petitioners filed a regular suit before the civil court being Original Suit No. 412 of 1986 for permanent injunction challenging the second auction sale dated 13.2.1986. The suit was dismissed on 8.8.1990 and appeal filed against the same being Civil Appeal No. 63 of 1990 is reported to be pending yet. 5. As far as the effect of order of this Court dated 25.9.1986 dismissing the writ petition as not pressed without any permission to file fresh petition is concerned the legal position is that such dismissal of writ petition bars second writ petition and SLP to the Supreme Court but not other remedies like suit or petition under Article 32 of the Constitution of India before the Supreme Court. This view has been taken by the Hon'ble Supreme Court in Sarguja Transport Service Vs. State Transport Appellate Tribunal, M.P., Gwalior and Others, AIR 1987 SC 88 . The observations made in the said judgment have been quoted with approval in M/s. Upadhyay and Co. Vs. State of U.P. and Others, AIR 1999 SC 509 . 6. In view of the above authorities, it is clear that dismissal of earlier writ petition as not pressed did not bar either filing of suit or Revision before the Board of Revenue. However, the question which still remains to be decided is as to whether both the proceedings i.e., Revision before the Board of Revenue against order of the Commissioner rejecting objections under Rule 285-I and the Suit challenging the same on the ground of nullity or fraud could simultaneously be taken by the Petitioner/debtor. Rule 285K provides that a suit in civil court for the purpose of setting aside the sale on ground of fraud can be filed. Rule 285K provides that a suit in civil court for the purpose of setting aside the sale on ground of fraud can be filed. Apart from it while interpreting the relevant rules of Order XXI, Code of CPC pertaining to the auction sale, i.e., Order XXI Rules 84 and 85, Code of CPC and U.P.Z.A. and L.R. Rules, i.e., Rule 285D and E, the Supreme Court has held that if the 1/4th amount of sale is not deposited on the date of sale and remaining 3/4th amount is not deposited on or before 15th day, the sale is nullity and it can be avoided or declared to be null and void in proceedings other than proceedings under Order XXI Rule 90, Code of CPC or Rule 285-I, U.P.Z.A and L.R. Rules. In this ground the reference may be made to the following authorities: (1) AIR 1954 SC 349 ; (2) AIR 1995 SC 2195 ; (3) AIR 1997 SC 1812 . 7. Further in Shanti Devi (Smt) Vs. State of U.P. and Others, AIR 1997 SC 3541 it has been held that if the sale is null and void, same can be challenged through writ petition also and that such objection is not an objection relating to any irregularity or mistake in publishing or conducting the sale and hence it is not barred by Rule 285K (In this case Supreme Court held the sale to be null and void u/s 154 of U.P.Z.A. and L.R. Act as after the auction purchase the purchaser became Bhumidhar of more than 12.5 acre of land). 8. In view of the above authorities, it is clear that the ground, which the debtor is raising, can be considered in suit or writ. As the Petitioner had filed the suit before filing of this writ petition, hence proper remedy for the Petitioner is to pursue the said suit which is stated to be pending in the form of an appeal. 9. The Petitioner in the writ petition stated at several places that after the first auction sale (which had later on been set aside) entire dues were deposited with the bank. The statement has been made in such manner that it gives an impression that the amount was paid by the Petitioner. 9. The Petitioner in the writ petition stated at several places that after the first auction sale (which had later on been set aside) entire dues were deposited with the bank. The statement has been made in such manner that it gives an impression that the amount was paid by the Petitioner. However, in the counter-affidavit it has been stated that the amount which was adjusted by the Bank before giving no dues certificate, was the amount which auction purchaser had deposited in pursuance of the earlier auction sale. This fact has not been denied in the rejoinder-affidavit. Along with the counter-affidavit, instead of annexing a typed copy of the complete judgment passed in the suit, only photostat copy of part of the judgment has been annexed. This practice cannot be appreciated. 10. Accordingly, writ petition is dismissed without expressing any opinion on merit on the ground of alternative remedy in the form of suit filed by the Petitioner which is said to be pending in the form of an appeal (Civil Appeal No. 63 of 1990). 11. Appellate court shall decide whether auction purchaser was legally entitled for adjustment against payment required to be made by him under Rules 285D and E out of the amount which was paid in pursuance of the earlier auction sale dated 3.3.1984. The Court must also decide the effect of the payment of the aforesaid amount to the bank by tehsil authorities.